Docket: 1656-CR Curt Alfred Dagenais Appellant - v. -, 2012 SKCA 103

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 103 Date: 2012-10-25 Between: Docket: 1656-CR Curt Alfred Dagenais Appellant - and - Her Majesty the Queen Respondent Coram: Richards, Caldwell and Herauf JJ.A. Counsel: Peter A. Abrametz for the appellant W. Dean Sinclair for the respondent Appeal: From: QBJ 1 of 2009, J.C. of Saskatoon Heard: October 25, 2012

Disposition: Dismissed (orally) Written Reasons: November 5, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf Richards J.A. I. Introduction [ 1 ] The appellant, Curt Dagenais, was convicted of two counts of first degree murder and one count of attempted murder following a trial by judge and jury. [ 2 ] Mr. Dagenais appealed his convictions to this Court. His counsel advanced three lines of argument: (

a) the trial judge erred in failing to put the defence of provocation to the jury; (

b) the police lost or destroyed evidence, thereby violating Mr. Dagenais’ right to make full answer and defence; and (

c) the trial judge made a fundamental error in his charge to the jury with respect to the defence of self-defence. [ 3 ] We dismissed Mr. Dagenais’ appeal following oral argument and explained the basis for our decision. At the time, we also indicated that a written version of our reasons would follow. This is the written version. II. the facts [ 4 ] I propose to recount only a bare-bones version of the facts. My purpose is not to be comprehensive but, rather, to establish some broad context in which to consider the arguments advanced on behalf of Mr. Dagenais. [ 5 ] At about 9:00 p.m. on July 7, 2006, Mr.

Dagenais drove his truck to the house in Spiritwood where his mother lived. He was angry because of what had transpired earlier in the day in a matrimonial proceeding between his parents. His sister met him at the front of the house. There was an argument and a confrontation. Mr. Dagenais swung his arm at his sister and almost struck her with his truck when he drove away. [ 6 ] Mr. Dagenais went immediately to the local R.C.M.P. detachment. He wanted his sister evicted from the house. The police told him they could not help. Mr. Dagenais was upset and said, “I am not done with you guys yet”.

Shortly afterward, Mr. Dagenais’ mother phoned the R.C.M.P. for advice and his sister visited the detachment to report on what had happened and indicate that she was afraid. The R.C.M.P. decided they had grounds to arrest Mr. Dagenais for assault. [ 7 ] It was then learned that Mr. Dagenais was sitting in his truck across the street from his mother’s house. Constables Bourdages and Cameron got into a police truck and Cst. Knopp took a second vehicle. They drove to the mother’s house. The police truck was parked in a fashion intended to block Mr. Dagenais’ exit. [ 8 ] Cst.

Cameron approached the driver’s side window of Mr. Dagenais’ vehicle and advised him that he was under arrest. He put his truck in reverse and then drove up and over the curb to get around the police truck. As this was happening, Cst. Cameron broke the driver’s side window of the truck. Mr. Dagenais fled the scene with the three R.C.M.P. constables in pursuit. [ 9 ] The police chased Mr. Dagenais over a series of rural roads and, at one point, through a field. They were concerned that he was trying to return to his father’s farm for the purpose of securing a firearm. Mr.

Dagenais eventually turned onto a prairie trail. He was followed by the police truck driven by Cst. Bourdages and then by Cst. Knopp in her police vehicle. [ 10 ] There was a clearing at the end of the trail. When it came into view, Cst. Knopp saw that the police truck had “t-boned” Mr. Dagenais’ truck. Neither vehicle was moving. Cst. Knopp assumed Mr. Dagenais had been apprehended but then heard a bang, saw a hole blown in her windshield and felt heat on the side of her face. Bullet fragments had penetrated her right arm and torso and had grazed the tip of her earlobe. Cst. Knopp then saw Mr.

Dagenais with a rifle and a second bullet struck her windshield. She returned two shots through the windshield and ultimately made her way back to the main road. Mr. Dagenais fled the scene. [ 11 ] Cst. Bourdages’ body was found on the ground some 25 feet from the open driver’s door of the police truck. He had been shot in the head and died on July 16, 2006. Cst. Cameron was still belted into the passenger’s seat of the police truck. She died on July 15, 2006. She too had been shot in the head. [ 12 ] Mr. Dagenais testified at the trial.

He said the events leading to the shootings had started when he learned that his mother was going to get half of the family farm in a pending divorce proceeding. He said his sister had been the aggressor in the confrontation at his mother’s house and that he had wanted the police to remove her so he could talk with his mother.

[ 13 ] Mr. Dagenais said that Cst. Cameron had approached his vehicle, told him that he was under arrest and then smashed his driver’s side window for no apparent reason. He testified that he was scared because he had been assaulted by police in the past and this caused him to flee. He said that, during the chase, Cst. Bourdages had attempted to ram the rear of his truck and had then sideswiped him while they drove through the field. [ 14 ] Mr. Dagenais said Cst.

Bourdages stayed right on his bumper down the prairie trail and that, when he tried to turn north in the clearing, his vehicle had been struck and pushed sideways into some trees. [ 15 ] Mr. Dagenais testified that he was reaching to turn off his engine when he heard a gunshot and a bullet shattered the back window of his truck. He saw Cst. Bourdages standing at the rear of his truck with a gun drawn. He said that he thought Cst. Bourdages meant to kill him. [ 16 ] Mr.

Dagenais indicated that, while lying prone on the seat of his truck, he had taken his 30 - 30 rifle from under the seat, loaded it, reached up, pointed it out the back window and fired one shot. He also fired two shots through the door. Mr. Dagenais indicated that he continued to lie on the seat because he was afraid to look up. He eventually climbed out of the driver’s side window of his vehicle and was leaning in to retrieve his rifle when Cst. Knopp arrived on the scene. He said he had “ducked down” when more shots were fired at him. He returned a couple of shots back in the direction of Cst.

Knopp and then ran off. He said he had not been aiming at Cst. Knopp and could not even see her. III. Analysis [ 17 ] As indicated at the outset, Mr. Dagenais based his appeal on three arguments. I will deal with each of them in turn. A. Provocation [ 18 ] Mr. Dagenais’ trial strategy was all about self-defence. For example, the final question put to him in his examination-in-chief was “And last, but not least, sir, why did you grab that rifle and start firing?” His answer was “A matter of survival”.

His trial counsel told the jury very clearly at the outset of his address that “in this case…self defence is the issue”. [ 19 ] The issue of provocation arose only after both Mr. Dagenais’ counsel and the prosecutor had addressed the jury. At that time, the trial judge suggested to counsel that he was inclined to leave provocation with the jury because, in his view, it seemed to be available in light of the evidence. There was then some discussion about the issue with counsel.

The prosecutor took the position that provocation was simply not available on the facts. [ 20 ] The next day, when he charged the jury, the trial judge made no reference to provocation. After the jury had retired, he explained to counsel that, upon reflection, he had concluded the defence had no air of reality. [ 21 ] Mr. Dagenais says this was an error. He argues that the collision between the Bourdages vehicle and Mr. Dagenais’ truck was an “unlawful act” that engaged the defence. [ 22 ]

Section 232 of the Criminal Code sets out the parameters of the defence of provocation. It reads as follows: 232.

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section, the questions (

a) whether a particular wrongful act or insult amounted to provocation, and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section. [ 23 ] The wording of s. 232 dictates that the defence of provocation has two aspects, one objective and one subjective. On the objective side, there must be a wrongful act or insult that is sufficient to deprive an ordinary person of the power of self-control.

On the subjective side, the accused person must have acted upon the wrongful act or insult and must have acted on the sudden and before there was time for his or her passion to cool. [ 24 ] The “air of reality” test was recently explained by the Supreme Court of Canada in R. v. Mayuran , 2012 SCC 31 , 348 D.L.R. (4 th ) 197:

21 In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence. It is notenough for there to be "some evidence" supporting the defence (Cinous, [2002 SCC 29, [2002] 2 S.C.R. 3] at para. 83). The test is"whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to betrue" (Cinous, at para. 65).

For defences that rely on indirect evidence or defences like provocation that include an objectivereasonableness component, the trial judge must examine the "field of factual inferences" that can reasonably be drawn from the evidence(Cinous, at para. 91). [25] It follows that, for the defence of provocation to have an “air of reality”, and thereby something which should go to a jury, theremust be evidence with respect to each element of the defence on which a properly instructed jury, acting reasonably, could find thedefence to be made out. See: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.

R. 350 at para. 41. [26] The trial judge’s explanation as to why there was no air of reality to the defence in this case is arguably somewhat difficult tofollow and might yield more than one

interpretation. That, however, is not the issue in this appeal. The critical question before us is notwhether we agree with the precise train of reasoning which led the trial judge to conclude as he did, but whether his bottom-lineconclusion about provocation was correct. [27] The Crown advances a number of reasons as to why the defence had no air of reality in light of the evidence. We find itunnecessary to investigate and pursue all of those arguments and content ourselves with making two points. Either of them, in and ofthemselves, is sufficient to defeat Mr.

Dagenais’ submissions on this issue. [28] First, even assuming for the sake of argument that the collision involving the police vehicle driven by Cst. Bourdages was an“unlawful act” within the meaning of s. 232, there is simply no evidence or basis on which a jury might have concluded that, in reactionto it, an ordinary person would have been deprived of the power of self-control and killed Constables Bourdages and Cameron. [29] Second, there is absolutely no evidence to the effect that, again assuming the collision between the police vehicle and Mr.Dagenais’ truck to have been an “unlawful act”, Mr.

Dagenais acted on the sudden and before there was time for his passion to cool. Hisevidence at trial was tied to the defence of self-defence. He testified that he had been frightened throughout the police chase and up toand including the shootings. But, he at no time indicated that he had lost the power of self-control, been provoked or reacted suddenly inthe heat of passion. Rather, he said that he had acted at all times in a calculated way designed to defend himself. In this regard, this caseis similar in principle to R. v. Faid, (SCC), [1983] 1 S.C.R. 265 and R. v. Olbey, (SCC), [1980] 1S.C.R. 1008. B.

Right to Make Full Answer and Defence [30] The next submission advanced on Mr. Dagenais’ behalf was that his right to make full answer and defence had been deniedbecause of what he termed “missing evidence”. This argument concerned three videotapes found in Cst. Knopp’s police vehicle. [31] Counsel for Mr. Dagenais did not push this argument in his oral submissions and was correct not to do so. The basic problem withthis line of attack is that it is simply not supported by the facts. There had been videotapes in a bag on the seat of Cst. Knopp’s vehicle.

However, she testified that the recording equipment in her police car did not work and that she had not used it on the day of theshootings. Sgt. Palen, who inventoried Cst. Knopp’s vehicle shortly after the shootings, testified that there was no tape in the recordingdevice. Although the police did destroy a videotape at one point later in their investigation there is no evidence whatsoever to indicatethat either it or any of the other tapes contained material relevant to the charges faced by Mr. Dagenais. Not surprisingly, Mr. Dagenais’trial counsel did not make any Charter application in relation to this issue.

C. Self-Defence [32] The final argument advanced by Mr. Dagenais concerns the defence of self-defence. He takes issue with the trial judge’sinstructions to the jury to the effect that jurors were not required to be unanimous in their individual assessments of the elements of self-defence so long as they were unanimous with respect to the bottom-line, i.e. as long as they were unanimous about whether or not thedefence had been made out. Mr. Dagenais says this was wrong in principle.

In his view, the trial judge should have instructed the jurorsthat they were required to have a unanimous view about each element of the defence. [33] We are not prepared to accept this argument. Counsel for Mr. Dagenais acknowledges that he has no legal authority for it. We arenot inclined to break new ground on this front. [34] Simply put, Mr. Dagenais’ submission on this point runs counter to common sense in that, if accepted, it could result in an accusedperson being acquitted even though each of the jurors agreed that he or she had no defence.

Further, it also runs counter to the basicprinciple, reflected in cases such as R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652, to the effect that the members of a juryare required to agree only on the ultimate verdict, not on the precise path to that verdict. IV. Conclusion [35] We are not persuaded by any of Mr. Dagenais’ arguments. His appeal must be dismissed.